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ARTICLE · 21 SEPTEMBER 2011

Commentary On Ouellet (Succession De) – A Will Cannot Be Contradicted… Unless It Contradicts The Testator!

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This is a commentary on a Superior Court decision regarding a motion for improbation of a clause in a will that provided for distribution of the succession.

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Antoine Aylwin
Antoine Aylwin
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This is a commentary on a Superior Court decision regarding a motion for improbation of a clause in a will that provided for distribution of the succession.

Introduction

In theory, it is well-established that in the presence of a clear will, the court will refuse to intervene and change the terms of the last wishes of a deceased person.

In Ouellet (Succession de),1 a group of heirs (siblings of the deceased) filed a motion for improbation of one particular sentence of the will that provided for distribution of the succession.

The Facts

The sentence contemplated by the improbation reads as follows:

[TRANSLATION] My intention being that the siblings who survive me, and all the nephews and nieces of my predeceased siblings, may inherit in equal shares by heads and not by roots.2

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